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YTL Centre hosts its first Law and Justice Forum

Posted on 07/12/2016

On 28 October 2016 the Yeoh Tiong Lay Centre for Politics, Philosophy and Law held the first of three Law & Justice Fora for the academic year. The forum was on the topic Human Rights and Development, and featured some of the leading thinkers and practitioners in the world working at the interface of human rights and development. The aim of this forum was to address the place that human rights have in rigorous and effective thinking about development policy, with a special focus on the socio-economic rights, such as the rights to health, food and education etc. found in the International Covenant on Economic, Social and Cultural Rights (1966).   Below is a report of the event.

The Forum was recorded and all the sessions can be found on the School of Law's YouTube page.

Photos from the event can be found on the School of Law's Flickr account.

After a warm introduction from the President and Principal of King’s College London, Sir Edward Byrne, the forum kicked off with a session on socio-economic rights. Professor Sakiko Fukuda-Parr (New School, NYC) gave a spirited defence of the role of human rights in development, stressing their role as a check on the excesses of market globalization whose potential has not been fully tapped. Professor Fukuda-Parr characterised human rights as pre-legal, essentially ethical, norms and pointed out that there is no evidence that they are in tension with the proper aims of development economics (as opposed to neoliberal economics). In particular, she argued that we should contest the dogma that there is a fundamental trade-off between economic growth and human rights. Equally, she claimed we also need to contest the assumption that government spending is always the key to fulfilling socio-economic rights. In his response, Dr Sridhar Venkatapuram emphasised the need to engage with the relevant disciplinary fields in thinking about human rights, rather than simply deferring to economic or medical experts. He also suggested that often a utilitarian approach was adopted behind the rhetorical façade of human rights, which can lead to a deterioration in the situation of the worst off.  Find the video of first session here.

In the session on the right to health, Professor Paul Hunt (former UN Special Rapporteur; University of Essex) spoke of the right to health as being still at an early stage in its intellectual journey, having received the benefit of sustained scholarly attention only in the last 16 years. It is premature, he said, to speak of a “twilight” of human rights when in relation to socio-economic rights dawn is breaking and we’re only just out of bed. Professor Hunt emphasised that drawing out the practical implications of the human right to health requires a multi-disciplinary marriage of norms and evidence. This necessitates an expert-led process of specifying the content of the human right to health but also one that seriously heeds the voices of poor people. In his response, Dr Octavio Ferraz struck a somewhat more sceptical note, stressing the acute indeterminacy that threatens the very existence of the right to health. How can there be a right if we cannot specify its associated duties in a principled manner? The way forward, he contended, is to strengthen procedural fairness in the distribution of resources subject to some minimal substantive constraints. Find the video of second session here.

There followed an interview of Professor Amartya Sen (Harvard), one of the world’s leading thinkers on human rights, development and their interrelation, by Centre Director Professor John Tasioulas. Professor Sen stressed that his capabilities approach does not purport to give a complete theory of development, but rather to identify and elaborate upon the principal goal of development: securing and enhancing capabilities to realize valuable functionings. There are other legitimate goals of development alongside the enhancement of capabilities. In this regard, he put great store on the capability to engage in meaningful work as a central capability to be fostered by government policy, not least because of the vital significance of work for personal self-respect. However, he resisted the thought that it is a theorist’s job to specify a general list of human rights, emphasising the irreducibly context-sensitive character of the judgments required in identifying salient capabilities and weighing their relative importance. Turning to human rights, Professor Sen pointed out that ‘capabilities’ was not another term for human rights; instead, they are categorically distinct. Human rights are moral rights possessed simply in virtue of one’s humanity, and it is an open question to what extent any given capability grounds a human rights claim. This will be a matter of specifying the duties owed to every human being to secure some threshold level of that capability. In this process, public reason in a democratic society plays a vital role. Find the video of the interview here.

sen law and justice

Professor John Tasioulas gave a talk on his recently finalised report as a consultant to the World Bank on the topic of minimum core obligations of human rights. Professor Tasioulas outlined an account of both the nature of such obligations and their value. They are to be understood as the sub-set of obligations associated with economic, social and cultural rights that are to be immediately fulfilled by all states. Hence, they are the subset of obligations not subject to the doctrine of progressive realization. The value of the minimum core doctrine is that it offers one strand of an answer to the question of how human rights are to be prioritized when it is not possible, because of resource limitations, immediately to realize all of them in full. Professor Tasioulas gave an account of how the content of minimum core obligations is to be specified, emphasising that they are invariant in their demands across different states, and he responded to two standard objections to the minimum core doctrine: (a) that it is an inflexible one-size-fits-all approach that ignores salient differences between societies, and (b) that even if it is justified in principle, its operationalization would be counterproductive. Professor Tasioulas responded to the first objection by stressing ways in which the doctrine is flexible, and to the second by emphasising that it turns on a misunderstanding of the doctrine that needed to be dispelled. Dr Max Harris (Oxford), in his response, raised the worry that the minimum core doctrine might be used to undermine the status of socio-economic human rights as compared with civil and political rights. More specifically, he raised a concern that the doctrine might lead states to unduly prioritize short-term human rights goals over weightier longer-term goals. Find the video of the third session here.

In a session devoted to human rights, development and indicators, Professor Sabina Alkire (University of Oxford) discussed how in practice human rights inform multi-dimensional poverty measurement.  She canvassed a number of different roles including influencing the selection of dimensions of priority, setting standards that must be attained by all persons, justifying weights across indicators, and justifying the setting of a poverty cutoff.  Professor Alkire provided specific examples of human rights influencing poverty measurement in these ways, such as Mexico’s official multidimensional poverty index.  She ended by noting possible concern with lack of sufficient flexibility with frameworks drawing on previously established human rights consensus and the ongoing concerns about ensuring sufficient data quality with which any adequate poverty measurement must grapple. Professor Colleen Murphy’s (University of Illinois) comments focused on possible complications that arise given the very different kinds of information diverse indicators provide.  In particular, some indicators provide information about ends, such as health, that we may value for their own sake, while other provide information about means, characteristically necessary to achieve valued ends.  Furthermore, some indicators provide information important for assessing whether human rights are being respected, while others do not.  She discussed descriptive, policy and moral concerns that may arise when the kind of information being provided is not made explicit. Find the video of fourth session here.

The forum concluded with a panel discussion of Professor Eric Posner’s ideas about human rights and development, especially as recently encapsulated in The Twilight of Human Rights Law. Professor Posner (University of Chicago) began by noting that the last ten years have been bad for civil and political rights (the growth of authoritarianism in China, Russia, the EU, the use of torture and drones by the US etc), but comparatively good for economic and social rights. However, the data offer no real support for the hypothesis that ratification of human rights treaties enhances human rights outcomes. He canvassed various reasons for this, including the ambiguity of legal rights, their proliferation, weakness of will and the practical obstacles in the way of realizing rights. In helping poorer countries, Professor Posner suggested that we should employ development economics, rather than human rights law, as our instrument. However, we should also recognize that both economic growth and human rights outcomes are more influenced by historical factors than they are by policy choices made today, including the choice to ratify a treaty. Still, he concluded with two grounds for optimism: (1) there is a correlation between GDP per capita and human rights outcomes, and the most likely driver of this is free market globalization; and (2) if we ask which countries have done the most to reduce global poverty, the answer surprisingly is the Gulf states with their extensive use of foreign workers from very poor countries: this potentially offers a model for others to follow. Find the video of the fifth session here.

In responding, Professor Onora O’Neill (University of Cambridge) gave a historical account of the emergence of human rights into prominence after the Second World War. Her hypothesis was that the historically dominant idea of duty fell into disrepute in the West after the rise and fall of notions of patriotic duty as a consequence of the First World War. The vocabulary of rights provided a weak, limited reinstatement of ethics after the failure of the ethics of duty. But it left us with a major problem: no right can exist unless someone carries the counterpart duties. Hence, we need to revive the idea of duty in order to secure a proper understanding of human rights. Professor Michael Ignatieff (CEU, Budapest) agreed with Posner’s attack on legal fetishism or rule naivete - the idea that simply enshrining a human rights norm in law ensures a good human rights outcome -  and also shared his misgivings about the proliferation of human rights legal norms. However, Professor Ignatieff stressed that it was important to distinguish human rights as an ideal in political morality from the human rights treaty regime. The latter may have had little practical effect, but the former was instrumental to three profound revolutions since the Second World War: self-determination and decolonization; democratization; and civil rights. A narrow focus on international law loses sight of the important role the politics of human rights has played and may well continue to play: we have no reason to think that the human rights idea is entering a twilight period. Similarly, Professor Guglielmo Verdirame pressed the distinction between human rights as moral and as institutional forms, and argued that no one believes that human rights treaties are themselves sufficient to ensure good human rights outcomes. Still, they may well play a valuable role, especially if we ask what would happen to the politics of human rights in their absence. In the long sweep of history, human rights treaties are just one institutional embodiment of human rights morality. Time will tell what good they can do, but it is too early to write them off as yet. And the idea that human rights law can be simply replaced by development economics seriously underestimates the difficulties that the discipline of economics is currently undergoing.

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